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The ethics of using contract attorneys in your litigation practice

ethical concerns when using a contract attorney

Like many industries, today’s legal industry relies heavily on gig workers.

These are individuals who perform work for an employer outside of the “normal” employer-employee relationship.

Law firms frequently hire independent contract attorneys to perform a variety of tasks, including document review or the preparation of legal briefs for submission to the courts.

At first blush, this seems like a quick and easy way to overcome staffing shortages within a law firm. In fact, hiring a specialized independent contractor can help a firm retain clients who have legal problems outside of the firm’s usual scope of work. Moreover, these relationships can be very beneficial to the contract attorneys themselves.

Seems like a win-win situation, right?

It can be and most of the time, it is. Still, law firms that use contract attorneys need to be mindful of the ethical dilemmas that can arise within the context of these relationships.

Here are some of the top issues firms and freelance attorneys should consider before agreeing to work with one another.

Client consent

Most states have an ethics rule that requires attorneys to communicate with clients about important matters relating to their case.

California’s Rule 1.4, for example, requires lawyers to “reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation,” and “keep the client reasonably informed about significant developments” in the representation.

Many clients choose a law firm because of the credentials of the firm’s lawyers and/or the reputation of the firm in the community at large. It’s not surprising, then, that clients would want to know if their matter was being handled by someone who is not directly employed by the firm itself.

Nine times out of ten, the client will approve the use of a contract attorney without much push back.

If they don’t find out that a contract attorney isn’t an employee of the firm until something goes wrong in the case, however, you better believe there’s going to be trouble.

The ghostwritten brief

Contract attorneys are frequently hired to write legal briefs for a firm that is understaffed on a particular matter.

This practice makes good sense. Why hire a permanent associate when you only need help with one case? As a former attorney turned freelance writer, I can tell you this type of arrangement happens all the time.

But here, the ethical dilemmas get a little bit deeper.

After all, the contract attorney isn’t just a “development” the client needs to be informed about. In this scenario, the attorney is preparing work that will ultimately be submitted to a court of law.

This begs the question: does the court need to be informed of the contract attorney’s work on the case? Does the contract attorney need to sign the brief or otherwise vouch for its veracity?

A few years back, the Orange County Bar Association tackled the issue of ghostwritten legal briefs head-on. In its Formal Ethics Opinion 2014-1 the Bar concluded that “There is nothing inherently unethical with a client or lawyer hiring another lawyer – often a contract lawyer – to ghostwrite a document to be submitted to court, without identifying the contract lawyer or disclosing his involvement.”

The only exception to this is if the contract lawyer’s fees will be submitted as part of a demand for attorneys’ fees. In that case, contract lawyers will necessarily need to be identified so the reasonableness of their fees can be analyzed.

Conflicts of interest

As someone who has been hired as a contract attorney dozens of times, I can tell you that law firms frequently forget to check conflicts of interest when they’re in a rush to get help on a litigation matter.

That’s a huge mistake and one that the contract attorney needs to remain cognizant of. California Rule of Professional Conduct 1.7 places the obligation of avoiding conflicts with current and former clients on all attorneys — not just the attorneys hiring outside help.

You can see how this issue could quickly and significantly get out of control.

What if, for example, a contract attorney is hired to review documents disclosed in litigation. During that review, the contract attorney discovers documents produced by a client the attorney worked for at another firm. The attorney necessarily has a conflict between that prior representation and the current contract gig, even if it involves an entirely different dispute.

Yet, if the conflict isn’t discovered until after the attorney has begun reviewing documents, all sorts of unnecessary trouble ensues. That’s why it is so important to perform thorough conflict checks at the outset of the freelance engagement.

Malpractice insurance

Finally, both law firms and contract attorneys need to have early and honest discussions about malpractice insurance.

In most cases, the law firm’s malpractice policy will cover independent contractors.

Additionally, many contract attorneys who work regularly will carry their own policies. In other words, most of the time, there won’t be a problem when it comes to insurance.

Nonetheless, big problems can arise if the firm and the contractor only find out about a lack of coverage after the client has filed a malpractice claim. As with everything in the law, it is better to be on the safe side when it comes to malpractice insurance.

As noted above, relationships between law firms and freelance attorneys can be good for everyone involved. That said, they can easily go sideways if these simple ethical guidelines aren’t followed for every engagement.

If you make sure you can check all the above boxes before a contract assignment begins, you’ve gone a long way toward safeguarding the most important person in the relationship: the client.

Author

  • Jennifer Anderson practiced business litigation in California from 1999 to 2016. When she’s not writing from her floating cabin on the Columbia River, she can be found hiking or kayaking around the Pacific Northwest.